The
legal code of a nation ordinarily reflects, or should reflect, the values of the
society that form that nation. It depicts the influence of its past history and
its future aspirations or, at least, the aspirations of those in control. The
structure, mode, content and intent of the code indicate the ethical concepts
peculiar to that nation. All penal codes have ostensibly the same aims - to
punish the offender, to prevent crime and to preserve the peace. Nevertheless,
each country's penal code differs in its scope, its emphasis, its priorities
and, ultimately, in its effectiveness.

Let
us take the example of Pakistan. The Criminal and Penal Code of Pakistan is a
part of its colonial heritage. Even today it stands almost intact. A few minor
changes have taken place but, by and large, it remains a code conceived by the
British according to British concepts of right and wrong with an attempt to
adapt it to local conditions. However, recent years have witnessed attempts not
to change the entire code, but to institute parallel forums and enact new laws
which deal differently with crimes, evidence and procedure already covered by
the criminal and penal codes. The result has been mass confusion and overlapping
of powers and jurisdiction.

Today,
for example, criminal acts can be tried by a military court or a criminal court.
The latter adopts either procedures laid down under the Criminal Code or the
Shariat Law, depending on the offence committed. Each forum has its own
procedure, outlook, laws of evidence and punishment. This has left a vacuum in
certain matters, and also created a number of loopholes which can only be mended
when the entire penal and criminal code is examined as a whole.

Women
as a special group require special protection of penal laws owing to their
comparative physical weakness. They are likely to be physically overpowered and
exploited more often if the act goes unpunished. So, the first question we have
to ask ourselves is - Do we have adequate laws to protect the rights of women?
Only after this can we go on to examine the effectiveness of the laws in
existence. The factors that contribute towards making any written code affective
are the procedures, the actual working of the courts, the laws of evidence the
media pressures, the more effective pressure groups, the interpretations of the
legal previsions by the courts and the policies of the administrator of
law.

Rape
and Zina

Female
citizens need to be adequately protected against sexual crimes or crimes where
they are physically assaulted. Perhaps this is the most important safeguard
penal laws can afford to the female
sex. A guarantee that offenders will be fairly tried and fairly punished for
these offences make such legislations affective. In Pakistan the statute that
governs the laws of sexual violations is the Hadood Ordinance 1979. Originally,
the maximum punishment for rape was stoning to death, now conviction for it
carries up to twenty-five years of imprisonment and a 100 stripes. (1)

But
evidence required to prove rape for maximum punishment is either ocular evidence
of four adult male witnesses who have actually seen the act, or confession of
the accused throughout the trial period. (2) Therefore, the victim's own
statement has no testimonial value. Even for a lighter punishment strong
circumstantial evidence is required. Moreover, to allege rape is risky since the
victim can be made an accused or co-accused in her own case, which can be
converted to one of Zina. Zina, which is any sex outside marriage, is a
cognizable offence. Punishment for it is 4 to 10 years of rigorous imprisonment
and 30 lashes.(3) Even minors can be convicted of Zina though the sentence is
lighter - up to 5 years plus 30 stripes. (4)

A
woman alleges rape and takes a medical examination. If the accused is acquitted
the woman is convicted of committing a sexual act, the medical evidence being
proof of the commission of the crime. Widows, unmarried girls and wives whose
husbands are away have no other legal escape but to prove rape or be punished
for Zina. The victim must prove that she was definitely, not a consenting party
to her rape. If she is unable to convince the court, she is punished as a
co-accused for Zina.

This
peculiarity of our statute and its interpretation was highlighted in the case of
a blind girl, Safia
Bibi. Safia Bibi was raped by her employer and his son. She worked as a domestic
servant and out of fear did not tell any one of the rape. However, Safia
confided in her mother when she discovered that she was pregnant. Safia's father filed a complaint of rape. The
trial court acquitted the two accused but convicted Safia Bibi of Zina. The
benefit of doubt was given to the accused. Women in Pakistan staged
demonstrations against this judgment, journalists wrote articles and women
lawyers agitated in their Bar Association. The pressure was immense and the
Shariat Court on its own suo motu powers took cognizance of this matter. Women
lawyers appeared on behalf of Safia Bibi who got acquitted. The case of Safia
Bibi invoked sympathy since a poor blind girl was victimised. Since then there
have been many Safia Bibis and will be many more if the Zina Ordinance remains
with its present interpretations.

There
are numerous reported cases where a complaint ledged is of rape but the trial
court has punished both parties for Zina. The sentence has often been upheld by
the superior courts.(5) Even worse are cases where the accused is acquitted on
benefit of doubt but the victim is punished for Zina owing to her medical
report. Here I recount only a few judgments which have blatantly violated all
concepts of protection to woman.

The
Supreme Court in a case brought before it on appeal, where the sentence of rape
was converted to Zina, made the following observations.(6) "With respect it is
pointed out that the Federal Shariat Court failed to notice that the correct age
of the victim was only 16 years as against the petitioner a fully grown up male
in his mid-twenties. She had a frail body weighing only 94 pounds. She bore
marks of violence on the backs of both forearms particular whereof are typical
of use of brutal force. She was a virgin before the act. The fact that gagging
of her mouth with a clean cloth did not produce an injury, was not indicative at
all of either it being a false assertion or that it was unnatural".

An
orphan abandoned child of 13 years was raped by her uncle and his son. This
child Jehan Mina was doing domestic work for her ailing aunt. After a few days
of the crime Jahan Mina narrated the incident to her family members. No one
believed her initially. They physically thrashed her and threatened to kill her.
However, she maintained her story. One of her uncles who now believed her, filed
a complaint of rape. The accused were acquitted for want of evidence. Jehan Mina
was punished with these remarks: "The present case against Jehan Mina is,
therefore, not a case where merely her statement can be regarded as the basis of
conviction but in fact the basis of the conviction is her unexplained pregnancy
coupled with the fact that she is not a married girl ....we sentence her to 3
years Rigorous Imprisonment, plus 10 stripes in view of her tender age and also
on account of the fact that her father was dead and her mother had contracted
another marriage and she was, therefore, a girl who lacked the benefit of
parental affection. The stripes should be inflicted in accordance with the
provisions of Section 5 of Execution of Punishment of Whipping Ordinance 1979.
Since the appellant has given birth to a child and the rearing of the child is
of utmost necessity, therefore, following the precedent of the Holy Prophet
(P.B.U.H.) we have decided to suspend the execution of punishment of whipping
and imprisonment till the child attains the age of two.....and thereafter it
will be carried out when the child has attained the age of two
years.(7)

In
a reported case (PLJ 1982 FSC 174) a young girl Mst. Taslim Bibi gave birth to a
child and filed a complaint of rape. The trial court convicted both the
complainant and the accused of Zina. The accused man appealed to the Federal
Shariat Court and got acquittal. Taslim Bibi is still serving her 5 years of
sentence. Her child died after 2 months in the jail.(8)

Two
fifteen-year old girls complained of rape. The trial court convicted the accused
but the Shariat Court found it a case of consent and altered the sentence of
Zina. On appeal filed by the accused man the Supreme Court observed that the
view of the Federal Shariat court was without any cogent reason. But since the
Supreme Court was not competent sua motu to either enhance the
sentence or chante the conviction the case remained one of Zina.(9)

Even
twelve-year-old victims of rape have received punishment for Zina. (10) Consent
of a minor should normally be immaterial in such case, especially where they are
exploited by grown ups. Sometimes the courts apply their own concepts of decency
and morality while giving weight to a woman's evidence. In the mind of the court
the difference between a liberal and a promiscuous person does not exist in
Pakistan. Women who show any independence are taken as a "shady character" or a
person with loose morals.(11)

Attempt
to rape is punishable with 12 years and 15 stripes.(12) However, preparation to
rape is only punishable to two years, of rigorous imprisonment. The court have
made distinction in the act of preparation and attempt of rape. A portion of a
judgement on a case of attempted rape on a 14-year-old girl is recounted. "The
case is proved to the hilt on merits. The only point that requires consideration
in this case is whether in the circumstances of the case the removal of the
Shalwar of the complainant preceded by a biting kiss in her cheek would amount
to preparation or attempt. If it is held to be a case of preparation the
appellant can be sentenced only under Section 354 Pakistan Penal Code to a
maximum sentence of two years rigorous imprisonment".(13) Ultimately, this was
held to be preparation, not attempt.

Penalty
for victimless crimes such as Zina is normally not severe. However, in Pakistan
it is a cognizable offence. Women have no protection from being implicated in a
false Zina case. The complaint is made and the accused are taken into custody.
The accused is subjected to medical examination. If a woman refuses to be
examined, she takes the risk of being convicted. A study of the case laws on
Zina reveal cases where even married couples have been accused of Zina. In one
case, the trial court convicted both husband and wife even when a valid marriage
certificate was produced. In another case a married women was convicted of Zina
by the trial court. The complainant was an anonymous letter written to a police
officer alleging that the accused was pregnant while still unmarried. The woman
was arrested and convicted at trial. What is even more amazing is the fact that
a marriage certificate and the husband's testimony in favour of his wife were
set aside by the trial court.(14)

Qazf ordinance

The
remedy for innocent persons falsely accused of Zina or rape is to complain of
Qazf. The Qazf Ordinance 1979 punishes anyone making a false imputation of rape
or Zina with a maximum punishment of two years and whipping of eighty
stripes.(15) Cases of Qazf are few. Anyone who has gone through one such legal
process has probably had enough for a lifetime. In certain cases the superior
courts have direct the acquitted person to make a complaint of Qazf yet no such
complaint was made.(16) Moreover, the statute is vague. Evidence for maximum
punishment is testimony of two adult male witnesses, confession of accused or
accusation made before a court.(17) A husband accused a wife in a court
proceedings of having illicit relations with another man. The wife made a
complaint of qazf against her husband. The court held that illicit relations
does not necessarily impute Zina and the case was dismissed. At present a matter
on quazf is pending before the Shariat Court. The issue to be decided is whether
a husband can be convicted of Quazf on the complaint made by this wife. The
complainant in this case is a woman who was married to a Pir (religious lander)
for many years. They had three children. The husband alleged before The Family
Court that the woman was immoral and his children illegitimate. The trial court
convicted the husband but the Shariat Court has granted him bail till decision
of this case.(18)

The
reason for interpreting this law is because of an Islamic procedure laid down
for divorce in cases where a husband accuses his wife of adultery.(19) Here the
accusation is made before a court. If the woman denies it, both parties repeat
their accusation/denial on oath five times. Thus the marriage is dissolved. Yet
a woman can be prosecuted for Zina. On the other hand a man cannot be prosecuted
for Qazf. It the man refuses to take the oath, he is imprisoned for such time
till he takes the oath. Where the woman refuses to take oath she is punished for
10 years of rigorous imprisonment and administered 30 stripes in
public.

Protection
throughout the legal procedure

Women
accused of an offence need to be protected throughout the legal procedures.
Human rights of a defendant during the course of legal procedures prior to
conviction are observed with concern and completely disregarded subsequent to
conviction. Whereas criminal law comes into operation the minute an offence is
committed and continues till either the accused is acquitted or released after
punishment.

Police
force everywhere is male dominated, therefore, women require protection
regarding physical privacy. Laws are enacted where women suspects are searched
by a female and examined by a female doctor. In Pakistan, the law gives women
that protection and in fact where a woman is in "purdah" women police force
alone can raid places for her search. (20) In theory this is so, but no law and
no authority can control the "police power" of a society, specially where the
state is itself dependant on this power and misuses it for political reasons.
The normal police practice is to suppress the weak. Where a suspect cannot be
apprehended, the police takes his women relatives in custody. This is the
simplest and the most efficient method to ensure apprehension of the wanted
suspect. Police stations have no female constable or officer. Woman are,
therefore, kept in custody of male officers and are at their mercy.

Women
prisoners in Pakistan live in practically subhuman conditions. Under-trials are
subjected to physical labour although it is disallowed by law. Women convicts in
Punjab are all housed in a single jail at Multan. There are altogether 4 women
prisons in the country. This means that women convicts cannot serve their
sentence in their own home districts and are cut off from their relatives.
Conditions in these prisons are grave and even the government in a report
regarding Female Crime made the following observation: "An overwhelming majority
of the convicts manifested an extremely negative perception of law enforcing
agencies. The most severely attacked agency was the police force. They accused
prison staff of being unfair and cruel".(21)

Recently,
a number of cases where woman were maltreated, tortured and made pregnant in
women jails were reported. Cases of Zina were registered against these women
prisoners. Women groups in Pakistan strongly protested against this injustice
and presently an inquiry is being held by the Government (Annex
attached).

Right
to abortion or a criminal act?

Even
more difficult is to enact and enforce laws of morality. The universal problem
in legislating morality is to determine whose idea of morality is to be
enforced. Nowhere is this basic disagreement over moral issues more evident than
in the controversy of abortion. There are these who feel that the right to have
abortion on demand follows from a woman's right over her body;
others consider it a form of murder. Liberal societies, who are accepting the
concept of individual freedom, have granted women the right to abortion within
weeks of pregnancy. In Pakistan, however, the person aborted and the person
causing abortion can both be punished with rigorous imprisonment of up to 10
years.(22) Despite of these laws illegal abortions are carried out in Pakistan
resulting in a high death rate. No one dares advocate the right to abortion and
everyone is aware of quack abortion centres. Incidents of abandoned newborn
infants are many. Fear of punishment and social pressures force unmarried
mothers to throw away their infants. The society is not only contemptuous and
unsympathetic towards the mother but also towards all children born outside of
wedlock. A couple of years back a newborn who was left at the door of a mosque
in Karachi was stoned to death. The local Maulvi (priest) incited the
people to kill
this infant which he said was the product of a devil. A case of murder was
registered against these people, but no arrests were ever made.

Women
activists are demanding the right of abortion for a victim of rape. Seminars on
this issue were held and all shades of opinion did agree to it in principle.
However, the matter was dropped since the time of the alleged abortion could not
be determined. Women demanded that the alleged victim be given a right of
abortion the minute she alleges rape. This was only acceptable to the
fundamentalists if the women were prepared to risk punishment for Zina and
abortion, in cases where rape was not proved.

Conclusion

In
Pakistan laws regarding women have changed from one extreme to another. In a
male dominated society with feudal traditions and a colonial heritage, the laws
themselves were very liberal in protecting women. In fact they went too far and
discriminated positively in favour of women. Two such examples being the special
right to bail for women and no punishment for the female partner in case of
adultery.(23) However, in practice society remained male dominated and the
status of women remained inferior. Recourse to protective legislation or even to
legislation granting women equal rights was rare. But whenever invoked they were
effective enough. The possibility of redress of grievances was there and was
being increasingly utilized.

Ever
since the Islamisation process has been brought in, the fundamentalist have
taken over. Under the guise of religion they have enacted their own obscurantist
laws which have been particularly detrimental for women. Even the constitutional
provision granting complete equality to women has been suspended.(24) A number
of laws enacted and proposed have relegated women to an inferior status.(25)
This has taken away whatever remedy women enjoyed through legal process even in
theory. Even worse is that such acts have fostered an inherent contempt for the
status of women by certain sections of the society. This has resulted in glaring
crimes against women duly protected or covered up by the law enforcing agencies.
Such reactionary forces have obviously produced women's pressure groups
agitating against discrimination. Their protests against extreme cases of
excesses such as the Safia Bibi's (The blind girl) case have been met with
temporary palliatives. In the case of Safia Bibi, laws were left intact but the
individual case was dealt with by the Shariat Court. In other cases laws have
been hastily amended in a drastic fashion and such unreasonably harsh punishment
meted out that the credibility of the law itself is lost.

This
is done as a reaction to pressure of public opinion and women's groups along
with the embarrassment caused by the attention of the international media and
the world community. In 1984 an amendment was made in the Pakistan Penal Code,
enhancing a two years sentence for outraging a woman's modesty to capital
punishment.(26) This amendment was made following an incident in a village
called Nawabpur. The reason for this vendetta was a trivial feud between the
carpenter and the Town Committee members’ wife. These women and minor girls were
made to dance naked at pistol point in the presence of police constables and the
local persons. The incident sparked off countrywide demonstrations by the women
and some men.

Newspapers
gave a sympathetic coverage to the victims. Public morality was outraged. The
penalty for such an offence under the Penal Code was only two years, therefore
the punishment was enhanced to death penalty or life imprisonment. Tendency to
overreact to public pressure is sometimes counter-productive. No one is willing
to enforce laws where the penalty is out of proportion to the crime committed.
Enforcing such regulations is always difficult. Not only the law maker but even
the citizens realise that such laws are only enforced for a few unfortunate
ones. Even the culprits of Nawabpur were not given death sentence or life
imprisonment. Infact two months later they were released on bail and the
carpenter's family left Nawabput fearing another vendetta. Such crimes were
repeated and the enhancement of punishment had no preventive effect.

In
order to make protective legislation for women effective, it must be enacted
after due consideration and debate like all other legislations. All shades of
opinion must be thoroughly considered in the background of international norms
of justice and equality. The laws must reflect no only the national aspirations
but also the international strive for an end to the exploitation of women. Laws
must protect women against genuine handicaps and not grant them special status
generally, which makes a mockery of the law. These laws must not tilt hastily
from one extreme to another in response to extreme pressures.

In
societies like Pakistan special responsibility devolves around educated classes
as a whole. In matters regarding women the responsibility rests particularly on
educated women. They must develop a national awareness to the particular plight
of a woman in society. Her weakness in face of centuries of male dominance and
the unfairness of many of the prevalent social attitudes. Such efforts are not
futile. We have seen the impact of even puny protests of a small segment of
women in Pakistan. Their outcry against exploitation and discrimination have had
tremendous impact even in the adverse conditions prevailing. Persistence is
bound to bring about a social change where women are treated as equal but
different.

21.
Female and Crime, by Naeem Pervaiz, published by Women's Division, Government of
Pakistan.

22.
Section 312 to Section 316 of the Criminal Procedure Code, 1898.

23.
a. Section 497 of the Criminal Procedure Code

(1)
When any person accused of any non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears or is
brought before a Court, he may be released on bail, but he shall not be so
released if there appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or transportation for life. Provided
that the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence be released on
bail.

b.
Section 497 of the Pakistan Penal Code.

Adultery:
Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery and shall be punished with
imprisonment of either description for a term which may extend to five years or
with fine, or with both. In such case the wife shall not be punishable as an
abettor.

24.
In Abeyance vide Chief Martial Law Order I of 1981, dated 24-3-81.

25.
Proposed Evidence Act 1982. Proposed Qisas and Diyat Ordinance.

Recommendations
made by Ansari Commission.

Recommendations of the Council of Islamic Ideology.

New Islamic Laws 1979.

New Evidence Act 1984.

26. Criminal Law (Amendment) Ordinance 1984.

Section 354 A - Assault or use of criminal force to woman and stripping her of her
clothes - Whoever assaults or uses criminal force to any woman and strips her of
her clothes and in that condition exposes her to public view shall be awarded
death punishment or life imprisonment with or without fine.

Zina:
the Hudood ordinance and its implications for women

Sabiha
Sumar & Khalid Nadvi

21
November 1987

On
7th November 1987 a court in Karachi sentenced a woman of twenty-five (Shahida
Parveen) and a man of thirty (Mohammed Sarwar) to death by stoning. The heinous
crime for which these two have been charged and have met such harsh punishment
is that of zina-bil-jabr (which is
considered close to the concept of rape). The case is not however so simple. The
woman had been divorced by her first husband. Divorce papers had been signed in
front of a magistrate. The document however had not been registered in the local
council office by the husband as required by law, and was therefore not legally
binding. Unaware of this Shahida, meanwhile, sat out her period of iddat (the
traditional period of ninety-six days before which a woman cannot remarry
following a divorce, as laid down in the Qur’an) with her parents in Lahore,
then, subsequently remarried. Shahida had an affidavit attested by a magistrate
in Lahore to confirm her status as an adult free to marry whosoever she wished.
As far as she was concerned she was on safe ground.

Her
first husband, rebounding from a failed attempt at a second marriage, decided he
wanted his first wife, Shahida, back. Given that he had not had the divorce
documents registered, his marriage to her was still legally binding. Hence, her
second marriage to Sarwar was by definition zina/zina-bil-jabr (adultery/rape). Hence
stoning to death.

Clearly,
whatever the legal niceties of the case may be, there has obviously been a
serious miscarriage of justice. Not only is the sentence reprehensible, but by
all norms of social behaviour and justice, the woman and her second husband are
innocent. Sadly, such miscarriages of justice have been quite common since the
then martial law government in Pakistan introduced the Hudood Ordinance in 1979 by a
promulgation. The present elected government confirmed the law on the statute
books on coming to power in 1985.

The
background to the Hudood Ordinance
lies in the desire of the Pakistani government to bring laws in Pakistan in
conformity with the Qur’an and Sunnah (the sayings and deeds of the prophet). It
is an integral part of the much heralded Islamization process presently taking
place in this country. The Hudood
Ordinance deals with the offences of prohibition (consumption of drugs and
alcohol), zina (rape, adultery, fornication), theft and Qazf (perjury). It is
with regards to zina that the Hudood
Ordinance has been most controversial.

Prior
to 1979, adultery and fornication were not crimes against the State. Under the
Hudood Ordinance both are now serious
offences liable for the heaviest of punishment death, and also by stoning. Zina is defined as willful sex between
two adults who are not validly married to each other. Where sex takes place
against the will or consent of a person (either man or woman), or by use of
force, or where one person is falsely led to believe that his/her partner is
validly parried to him/her, is defined as zina-bil-jabr.

Both
types of zina are liable to the Hadd punishment (stoning to death in
public) if either a confession is obtained, or if the actual act of penetration
is witnessed by four adult, pious, and forthright males. Failing this the
lighter punishment of Tazir (rigorous
imprisonment and whipping) applies. Tazir
(rigourous imprisonment and whipping) applies. Tazir punishment is given when despite
there being no witnesses, or confession, the court is convinced that zina or zina-bil-jabr took place.

The
implications arising out of the Hudood
Ordinance are severe, and its interpretation by the courts has led to
serious miscarriage of justice for women. Whilst zina effectively applies to adultery or
fornication and zina-bil-jabr to rape
(either by the man or the woman), the onus of providing proof in a rape of a
woman rests on the woman herself. If she is unable to convince the court, her
allegation that she has been raped is in itself considered as a confession of zina (sex outside marriage) and the rape
victim effectively implicates herself and is liable to punishment.

Furthermore,
the woman can be categorised as the rapist herself since it is often assumed
that she seduced the man. In fact, such cases have occurred where a rape victim
is herself punished for zina while
the rapists roam the streets. In July 1983, Safia Bibi, an eighteen year old
blind girl, raped by her landlord and his son, and subsequently pregnant, was
sentenced by the trial court to 15 lashes (to be administered publicly) plus 9
years imprisonment for zina. Unable
to positively identify her assailants, the rapists were acquitted of the crime.
Similarly, a thirteen year old orphaned girl was raped by her uncle and his son
and became pregnant. Unable to convince the court that rape had occurred, she
was instead awarded the tazeir punishment of 100 lashes plus 3 years rigorous
imprisonment for zina ; the fact that
she was pregnant being proof for the court that sex outside marriage had taken
place.

Various
other types of miscarriages occur in practice. A husband can file an FIR (First
Information Report) with the police alleging that his wife has left him with
another man. On the strength of this allegation the wife and her alleged lover
are arrested and sent to jail to fail to await trial. This is an extremely
powerful lever of control that a man can, and often does, use to subjugate his
wife.

For
example, if a woman files for divorce against her husband and leaves her home
(as required in law), her husband can file an allegation of zina against his wife if she moves into
a household which has a man other than her blood relative. In early 1987 Roshan
Jan (24 years) filed for divorce against her husband on the grounds of severe
physical mistreatment, and moved into her neighbour's house. Her husband lodged
an FIR alleging that she was committing adultery (zina) with the married neighbour. On the
basis of this FIR Roshan Jan was arrested and has been in jail, without legal
aid, awaiting trial for zina.

Even
if a divorce document is attested by a magistrate, if the husband fails to
register it with the chairman of the local council as legally required, the
divorce is invalid. If the woman is unaware of this and subsequently remarries
she can be prosecuted for zina.
Furthermore, in such a case the woman can be accused of "raping"
her second husband (zina-bil-jabr) on
the grounds that she mislead him into believing that she was validly divorced.
The Shahida-Sarwar case, mentioned above, is one such example.

One
of the most frequent circumstances under which zina is alleged to have occurred is in
cases of elopement. Of the forty-four women in Karachi Jail charged with zina, over half are accused
of having committed zina due to abduction. The
assumptions being that with any couple who elope (or as is absurdly stated where
a woman is abducted) sex must have taken place, and they are thereby liable to
prosecution for zina. Eighteen year
old Zahida is one such case of being charged with zina on the grounds that she ran away
with her fiancé. Her stepmother wanted her to marry an elderly man (who was
willing to pay a higher bride price). Zahida refused and eloped with the
intention of marrying her fiancé secretly. Her father lodged an FIR of abduction
the same day and the police picked them up at 4 a.m. They were charged with zina. Both are now in jail. Zahida's
case is representative of many other cases with similar circumstances. If the
accused parties in a zina case cannot
be found, it is quite common for the police to arrest close relatives (usually
elderly parents) who are charged with being accomplices to zina. They are thereby liable to the
punishment of tazir (lashes and
rigorous imprisonment). Naikan Bibi (sixty years) is an illustration of such an
accusation. Her son ran away with an unmarried woman, the girl's family unable
to trace the couple lodged a complaint against Naikan Bibi and her husband as
accomplices to zina. Both she and her
husband are now in jail, without legal support and under the threat of the
punishment of whipping (despite being over sixty years old). Again it is assumed
that the two who ran away have necessarily committed zina. There are at least 3 such cases in
Karachi jail in which elderly parents have been accused of being accomplices to
zina.

Of
the forty-four women in Karachi jail accused of zina, at least thirty-six are cases with
circumstances similar to those described above. Clearly, therefore, the present
interpretation of the Hudood Ordinance
leaves much to be desired. Furthermore, of these forty-four women at least
seventeen have been in jail for over a year, some even for five years, awaiting
trial. Bail in cases of zina is
usually set at Rs. 20,000 - 30,000/ - (US $1,000 - 1,500). A sum which is beyond
the reach of most of the accused, given that they all come from low-income
social backgrounds. As it is bail could realistically only be furnished by the
husband or the father, and it is they who are often the complainants.

Consequently,
without the economic support of either the husband or father, the women are left
to fester in jail. In cases where bail has been furnished by the husband, it
often becomes a powerful weapon to threaten their wives into submission. If the
wife "steps out of line" they will withdraw the bail and she will be sent back
to jail.

Parveen's
(18 years) husband left her with her in-laws and took up a job in the Middle
East. Her in-laws, in debt to a creditor, agreed to give her in exchange in
order to clear the loan. Her husband, on returning filed a complaint of zina. Parveen was arrested. Her husband
then furnished her bail, but at the time of returning to his job in the Middle
East cancelled her bail, thereby sending her back to jail. In Ghulam Sakina's
(aged 55) case bail has been used as a weapon by her husband. Ghulam Sakina and
her husband had been falsely arrested as accomplices in a zina case. Her husband obtained bail
and, eventually, bailed Sakina out. In the time that lapsed between arranging
for the bail and getting Sakina out, her husband had found himself a lover.
Sakina says "this was nothing new for my husband; he is always bringing women
home, this time the difference was that he could avoid arguments with me by
canceling my bail". He did exactly that and Sakina was back in jail. Since
Sakina doesn't have a lawyer it is unlikely that her case (in which as it is she
has been falsely implicated) is going to come up for trial in the near future.
As her husband is unlikely to bail her out (unless he bores of his new lover),
Sakina is doomed to remain in jail.

According
to the data collected in 1982 by the Women's Division, Government of Pakistan,
there were a total of seventy female convicts in the whole of Pakistan. Today
there are sixty-seven alone in Karachi jail and a further twenty-four in Sujjur
jail (jails for which figures have been collected by independent observers).
This rapid increase in numbers, and the development of a new jail solely for
women in Larkana, shows the increasing awareness amongst men of the powers that
the Hudood Ordinance has placed in
their hands.

Although
the Hudood Ordinance was promulgated
in 1979, it seems that now, 8 years later, men have become more confident of the
manner in which they can get away with the sexual exploitation of women-rape-and
the ways in which they can control the lives of their wives and daughters.
Furthermore, men and women who have found that they are unable to make their
choice concerning marriage, with the consent of their parents, have eloped and
found themselves in jail facing the threat of the death punishment for zina.

It
is also clear that all these women presently in jail share a low income social
background. It is commonly acknowledged that women from low income communities
face the greatest degree of sexual and social oppression. Most of them are
unaware of their civil and legal rights, and for that matter the stipulations of
the Hudood Ordinance. It is precisely because of their lack of awareness that
women in jail are more vulnerable, weaker, and prone to harassment in every way.
The jail authorities have in their own minds already convicted these women and
they are treated like criminals. The ponderous legal system and lack of legal
aid perpetuates these conditions for women under trial.

The
Hudood Ordinance has without a doubt
weakened the position of women in Pakistani society. It has taken from their
dignity and their ability to decide their own lives and left them as pawns in
the hands of an oppressive legal order. The manner in which it has been used
coupled with the ambiguities within it clearly shows that women's security and
rights are far lower today than ever before. The Hudood Ordinance unquestionably hangs
like the sword of Damoclese over the head of all women in Pakistan. This
repressive legislation must therefore be repealed and the evils perpetuated by
it be rectified.

Women's
Resource Centre Shirkat-Gah

"Shirkat
Gah" is a non-hierarchical non-political organization of women who work to
encourage, support and programme the participation of women in national
development. As an organization 'Shirkat Gah' grew out of the conferences that
were held in 1975 International Women's Year. A number of young women met at
these conferences, and dissatisfied with the structure of the existing women's
organizations, decided to come together as a group to find answers to problems
affecting women. Meetings were held first in Lahore and then in Karachi,
Islamabad, Rawalpindi, Peshawar and Quetta where a core group of women was
identified and the aims and structure of the organization formulated and
constitutionalized. Today the organization functions from its office in Karachi
but maintains close contact with members of its core group, and with the
net-work of concerned men and women who formulate contribute to, and help
implement the projects "Shirkat Gah" sponsors and initiates.

Shirkat
Gah operates at two levels. On one level it is involved in research and data
base projects, and at another level it promotes the development of women through
economic and social programmes. In addition it acts as a pressure group
concerned with women's issues.

Research
and data activities

At
this level Shirkat Gah attempts to redress the balance in the neglected field of
women's studies. In 1978 it published a Bibliography on 'Women in Pakistan and
other Islamic countries', which is an effort to define, describe and give
structure to the existing body of literature... academic, periodical and
popular; and by doing so, to identify the still unexplored and unresolved areas
of concern to women. It is also an attempt to provide a basic tool of research
to validate the study of women as a legitimate scholarly pursuit. At present we
are in the process of revising and updating this bibliography.

Simultaneously,
research surveys have been carried out by members and associates of Shirkat Gah
on housing for single women, and the work attitudes and career plans of
University women and interviews and case histories of widowed and divorced
women. A position paper was also submitted to the Women's Rights Committee,
making recommendations and suggestions in response to their preliminary
report.

A
handbook on self-help health care has been serialized in a Karachi Urdu Women's
Magazine. And material was collected for a literacy training book (Rehnumah)
aimed at women to provide essential daily information which women in segregated
orthodox societies do not have access to. Unfortunate inability to obtain funds
for its printing prevented the production of the book. Shirkat Gah also contains
a library of newspaper articles dealing with women's issues covering the last
ten years. This is available to student and non-members of Shrikat Gah for
research purposes. In addition Shirkat Gah maintains contact with other women's
research groups at the international level to promote communication and an
exchange of ideas and material.

Development
activities

Shirkat
Gah took as its first priority project the setting up of a hostel for single
working women in Islamabad. A house was leased and is now being run as a hostel, which was opened
on August 1, 1976. It functioned for two years and was then handed over to the
Social Welfare Ministry. In 1985, Shirkat Gah organized a social development
workshop and field trips which introduced Canadian N.G.O's (non-governmental
organizations) and members of South Asian Partnership Canada (S.A.P. Can) to
grass root level Pakistani n.g.o's. The object of this introduction was to
initiate development projects at the grass roots. Areas concerned included
women's income generating activities, health, education and community
development.

Although
the organizations activities have been largely confined to research in recent
years, it formed a Research & Project Cell in 1985 which intends to be
involved in issues like the S.A.P./Pakistani N.G.O.s workshop in an attempt to
expand its development activities.